By Dr. Gary Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University
Alternative dispute resolution (ADR) categorically entails any process of resolving a dispute that does not resort to the formal litigation system. However, there is a variety of different types of ADR, including arbitration, mediation and other unconventional methods. But this article reviews the main fundamental purposes and challenges of ADR.
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Most Disputes Involve Interpersonal Conflict
ADR can be used to handle a wide variety of disputes, but most such disputes also involve a component of interpersonal conflict. Interpersonal conflict has been defined as “an expressed struggle between at least two interdependent parties who perceive incompatible goals, scarce resources, and interference from others in achieving their goals.”
There are generally five steps to most instances of human conflict:
- In the latent stage, a conflict may exist but is not yet known to the parties. For example, a painter is contracted to paint a house blue while the customer is out of town. But the painter misreads the agreement and paints the house yellow. A conflict exists, but neither party is immediately aware of it.
- In the perceived stage, parties involved become aware of the conflict. Sticking with our painter example, this would be the stage when the customer returns home and discovers that his house is yellow. He brings the mistake to the attention of the painter.
- In the felt stage, emotions, anxiety and stress fuel tension between the parties involved in the conflict. The customer probably begins to contemplate the frustration and humiliation of owning a yellow house as well as the costs to fix it. The painter likely feels embarrassed about his mistake and becomes nervous about his liability for it.
- In the manifest stage, the conflict becomes tangible as the parties discuss and/or argue over the source of the conflict, responsibilities, and the solution. This may take the form of phone calls, emails, and meetings between the customer and painter to determine how and why the house was painted yellow, and who is responsible for fixing it.
- In the aftermath stage, the conflict is either resolved or dissolved in some fashion. The customer and painter may reach an agreement on their own; they may enlist the help of either ADR or the formal legal system to resolve the issue; or they may just decide to part ways and never do business together again.
The Aim of ADR Is to Resolve the Conflict One Way or Another
The aim of ADR is obviously the aftermath, wherein a conflict is put to rest one way or another. However, it is important to understand the dynamics of conflict evolution as parties are not always well-equipped to identify or appropriately articulate the true source and nature of the conflict.
The biggest hurdle by far in the ADR process is human emotion and how perceptual biases can affect the objectivity of issues at hand. As human beings, our perceptions are inherently subjective. We consciously observe only that which our senses detect and that which our brain interprets.
We know from centuries of perceptual research that we frequently make mistakes and misinterpret our environment. In his seminal book on the scientific method, Dr. Carl Sagan proposes that when we are asked in court to “tell the truth, the whole truth, and nothing but the truth,” this request should be qualified by “to the best of our ability” because we are, in fact, quite error-prone when it comes to our perceptions.
Problems Often Arise When Perceptions and Emotions Override Logic and Rationality
The problem that often arises in ADR is when perceptions and emotions override logic and rationality. Given the adversarial nature of the American legal system, it is not at all uncommon that there are hard feelings and hostility between conflicting parties. Because of self-serving biases, the parties will often invoke such factors as religion, culture, race, gender or other irrelevant factors as evidence of their moral superiority.
Pride and ego can be very dangerous catalysts to the spiral away from constructive dialogue. At extreme levels, this can even result in the perceptual demonization of the opposition. That’s when parties become incapable of seeing the issues because of the personal animus for the other individual(s) involved.
In these situations, ADR facilitators do well to encourage focusing on the issues and not on the people. Perceptual biases are not altogether avoidable. However, because they are predictable they can be countered and overcome if the parties can resolve to concentrate on the material issues at hand, and not on any dysfunctional conflicts over tangential matters such as wounded pride or hurt feelings. When the parties can maintain that the goal is cooperation and eventual accord, these challenges can indeed be surmounted.
Two Forms of ADR for Addressing Conflict: Negotiation and Adjudication
It is also important to recognize the two primary types of ADR for addressing conflict: negotiation strategies and adjudication strategies.
Negotiation strategies involve non-binding attempts by the parties themselves to resolve a dispute through cooperative dialogue without the intercession of third-party arbiters. Negotiation efforts can take one of two forms:
- Simple or Unassisted Negotiation. As the name implies, this is the kind of negotiation in which the parties represent themselves and engage directly with one another to address the issues and attempt to come to a resolution.
- Negotiation through Agents. In this type of negotiation, discussions between the parties take place with the assistance of representatives (usually legal counsel). Parties may attend with their representatives or leave the meetings to the representatives themselves.
By contrast, adjudication strategies involve the intercession of one or more third parties who pass judgment on the merits of the dispute. Some adjudication strategies result in a binding decree on both parties and some do not.
While there are obviously many ADR strategies that can be used to resolve issues, there are similarities in the benefits. These include lower costs and fewer formal processes relative to litigation. Also, ADR can be facilitated by practitioners instead of attorneys.
An Agreement that Binds the Parties to a Certain Manner of Dispute Resolution Will Limit Options
Exactly which ADR strategy is appropriate will depend on a variety of factors. If an agreement exists that binds the parties to a certain manner of dispute resolution, this will of course limit options. Assuming the parties are free to choose, however, they must agree on a specific method of ADR in order to proceed.
If an agreement can’t be reached, then a formal lawsuit is the only unilateral way to pursue a remedy. Consent is an integral component to ADR in almost every context. And the prerogatives and risks associated with each party’s position will largely determine their willingness to engage in ADR.
Suffice it to say that a basic understanding of conflict psychology and the ways that ADR can address disputes is essential to making good decisions.
About the Author
Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.
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